Moore v. Califano

• Citation: 471 F. Supp. 146
• Decision Date: 26 April 1979
• Docket Number: Civ. A. No. 74-0552 CH.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Delbert W. MOORE, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant.

471 F. Supp. 146

Delbert W. MOORE, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant.

Civ. A. No. 74-0552 CH.

United States District Court, S. D. West Virginia, Charleston Division.

April 26, 1979.

Franklin W. Kern, Charleston, W. Va., for plaintiff.

Mary S. Feinberg, Asst. U. S. Atty., Charleston, W. Va., for defendant.

COPENHAVER, District Judge.

This civil action is before the court on the fee petition of Franklin W. Kern, counsel for plaintiff, to compensate Mr. Kern for legal services provided the plaintiff in connection with plaintiff's black lung claim. On February 9, 1971, the plaintiff filed a claim with the Social Security Administration for benefits pursuant to the Federal Coal Mine Health and Safety Act of 1969 hereinafter the "Act", 30 U.S.C. § 901 et seq. The Secretary denied plaintiff's claim and plaintiff thereafter sought review in this court of the Secretary's decision. On March 3, 1976, the court remanded the case to the Secretary, and, upon reconsideration, the Secretary granted benefits for the plaintiff.

The total past-due benefits awarded plaintiff were in the amount of $24,209.80. Pursuant to § 206(a) of the Social Security Act, 42 U.S.C. § 406(a),¹ the Secretary awarded Franklin W. Kern, counsel for plaintiff, a fee of $2,500 for services performed by Mr. Kern on behalf of the plaintiff before the Social Security Administration. On December 4, 1978, Mr. Kern petitioned this court for an additional $2,500, pursuant to § 206(b) of the Social Security Act, for legal services provided plaintiff in connection with the court's review of the Secretary's original decision denying benefits.

At a hearing on December 21, 1978, the Secretary, represented by the office of the United States Attorney in this district, objected to the requested fee and sought through the direct examination of the plaintiff and the plaintiff's daughter to challenge the accuracy of the time sheet submitted by Mr. Kern in support of his petition. The hearing was continued until December 29, 1978, at which time counsel for Mr. Kern asserted that the Secretary had no standing to object to the fee requested, or to otherwise participate in the fee petition proceedings, and, moreover, that the office of the United States Attorney had no authority to act for the Secretary in such matters. The court continued further hearing on the petition to permit the parties to file memoranda supporting their respective arguments. Those memoranda having been filed herein, the issue is presently pending resolution by the court.

As is described by the Secretary in his initial memorandum, the parties in this last phase of the litigation depart from their previous, traditional adversary roles. The plaintiff first appears before the court to attack the Secretary's decision denying benefits. Counsel for the plaintiff champions his cause. If the plaintiff prevails, he will ordinarily receive a fixed amount of past-due benefits. Assuming the Secretary does not appeal the grant of benefits, counsel for the plaintiff may then petition both the Administration and the court for a total attorney's fee of up to twenty-five percent of this fixed amount. 42 U.S.C. § 406. At that point, the plaintiff and his counsel no longer have common interests: the funds which are now earmarked for payment of the plaintiff's claim are subject to the just and reasonable fees of the plaintiff's attorney as fixed by order of the Secretary and the district court. The Secretary argues that as a result of this change in the posture and relationship of the parties, the Secretary must participate in the fee petition proceeding to avoid inherent abuses, ensure protection of the plaintiff's interests, and aid the court in setting a fair rate of compensation.

On the other hand, once the claimant has prevailed over the Secretary, it is the consequent alteration of the government's role upon which Mr. Kern relies to support his position. Counsel for Mr. Kern asserts that once the Secretary designates the amount of the award and is no longer in opposition to the plaintiff, the secretary loses any legal interest or title in the monies, is no longer susceptible to any injury or benefit from the court's rulings, and consequently has no standing to object to a requested fee. Moreover, Mr. Kern argues the Secretary cannot properly represent the interests of one whom he has just recently opposed, nor can the Secretary properly divide his allegiance between the government and the plaintiff.

Section 206(b)(1) of the Social Security Act provides:

Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.

42 U.S.C. § 406(b)(1).

The following procedure has been devised by the court in this district for implementing Section 206(b)(1). By letter dated December 21, 1977, addressed to the members of the Bar of the Southern District of West Virginia, Chief Judge Dennis R. Knapp stated:

Pursuant to section 206(b) of the Social Security Act, the Court, upon a finding that a plaintiff is entitled to benefits, may grant an attorney fee for services rendered to the Court, not to exceed 25% of the accrued benefits. The petition to the court should also be served on the United States Attorney. This petition should contain a breakdown of the time spent rendering services to the plaintiff at the judicial stage, as well as a brief description of the services provided. The United States Attorney will be given approximately thirty (30) days to consult with the Department of Health, Education and Welfare to consider the reasonableness of the fee. If the government chooses to contest the petition for a fee, a hearing will be scheduled at which time both the attorney and the client, the plaintiff in the action, should appear.

In addition to this procedure, it has been the practice of this court to require an affidavit from the plaintiff stating that the plaintiff assents to the requested fee, if in fact that is the case, and to require proof of written notice to the claimant of any hearing by the filing of a returned postal receipt executed by the plaintiff or a member of his household. Furthermore, the court reserves the right to examine the reasonableness of any fee and to schedule any hearings it deems appropriate, irrespective of the position of the Secretary or the plaintiff as to the reasonableness of the fee requested.

The practice of the court has thus been to permit the Secretary to participate in the fee petition proceeding, and in fact to rely upon the knowledge and experience of the Secretary to aid the court in the exercise of its discretion. In light of the issue now raised contesting this practice, the court has reexamined the legal basis for its...